Media images of the recent devastation from Hurricanes Harvey and Irma provide vivid illustration of the direct link between climate change and environmental justice (“EJ”) concerns. For those who live in the path of tropical storms, the impacts of severe storm damage often have a disproportionately harsh effect upon low-income, minority, non-native English-speaking communities. Members of these communities are often the least able to get out of harm’s way and find temporary living accommodations in a safer place. They tend to live in sub-standard housing stock that is the least able to withstand the impacts of storm surges and extreme wind forces. Frequently, their homes are disproportionately located in close proximity to clusters of known environmental hazards such as Superfund sites, hazardous waste TSDFs, chemical and power plants, other locally undesirable land uses (“LULUs”), and a range of industrial facilities which are associated with adverse health impacts. Hurricanes, tornadoes, and other extreme weather events may cause catastrophic damage and failures of routine safety systems, resulting in unexpected and uncontrolled releases of dangerous chemicals that impose particular risks on neighboring “EJ communities.”

In the early days of the EJ movement, attention and energy was focused primarily on questions of equity with respect to facility siting and the permitting of new LULUs in close proximity to already overburdened neighborhoods populated by EJ communities. For many years now, concerns about the inequitable distribution of environmental burdens have been used to rally opposition to the siting and permitting of new LULUs that would likely increase existing environmental risks. Naturally, this approach has tended to focus attention on the adverse health impacts associated with long-term exposures to the environmental contaminants that proposed new facilities would or could release to air, soil and water in the course of their routine operations.

Increasingly, however, the most serious environmental risks facing EJ communities – especially in or near industrialized urban waterfront zones – are those associated with the catastrophic weather-related impacts of climate change on existing facilities and established infrastructure. It is doubtful that the existing paradigms for thinking about environmental justice have grasped and evolved to account for this fundamental fact as quickly or as fully as they should and must.

At the state level, approaches to EJ vary considerably. Some states, like California, were early adopters of legislation that codified EJ and have established EJ programs with responsibility vested in a coordinating body and various required legal processes. Other states, like Massachusetts, have executive orders and state policies aimed at proactively integrating EJ considerations into the decision-making of environmental and energy agencies, and perhaps an occasional statutory nod in the direction of EJ. Some have programs (e.g., the Texas Environmental Equity Program) or study centers (e.g., the Center for Environmental Equity and Justice at Florida Agricultural and Mechanical University) that pertain to environmental equity but do not explicitly compel the government to go beyond the avoidance of invidious discrimination. In general, it remains the case that EJ laws, policies and programs have tended not to focus a great deal of attention on climate change impacts. That is, they have not tackled with sufficient rigor and depth the unfortunate synergies that occur when the worst effects of climate change are felt by the most vulnerable EJ communities. This is beginning to change, but the change cannot come too quickly.

By way of example, Massachusetts’ original EJ policy, which was issued in 2002, focused primarily on the equitable protection of parks and open space, on brownfields redevelopment, on fairness in environmental grant-making, and on procedural protections aimed at enhancing the ability of all to have a voice in environmental decision-making. Its scope was limited to environmental agencies, and it contained no mention of climate change. Today, the updated Massachusetts EJ policy (revised as of January 31, 2017) applies to energy as well as environmental agencies, and it expressly affirms the need to enhance meaningful participation by traditionally underserved and under-represented EJ communities in climate change decision-making, as well as in energy and environmental decision-making. In addition, the updated Massachusetts EJ policy expressly points to the need to ensure that all residents “are prepared for and resilient to the effects of climate change.” This link between climate change and EJ is also now reflected in the Massachusetts Climate Protection and Green Economy Act, codified at G.L. c. 21N. Specifically, § 5 of that statute expressly requires the Secretary of Energy and Environmental Affairs to determine “whether activities undertaken to comply with state regulations and efforts disproportionately impact low-income communities.”

The importance of strengthening the developing linkage of climate change to EJ concerns cannot be overstated. The most pressing EJ problems today go far beyond matters of equity with respect to parklands, brownfields, grants, and opportunities for participation in environmental decision-making. The most urgent current EJ needs include planning and providing for robust, effective, fair responses to the environmental disasters associated with climate change, as they affect vulnerable low-income, minority, non-native English-speaking communities. States, counties, and municipalities will need to step up and provide the necessary leadership to address these needs. This will require creating, strengthening, and fulfilling the promise of state and local EJ laws, policies, and programs, so as to address the current gaps in our legal system that all too often leave the most vulnerable among us “up the creek without a canoe paddle” in the wake of an environmental disaster. As we face the future, whether and how we will choose to involve, consider, and respond to those who are at the greatest risk of being the most severely victimized, at the intersection of climate change and environmental justice, will be a test of our collective will and values.

Massachusetts’ ambitious plan to address greenhouse gas emissions on a state-wide basis attracted private money last month to measure its success and costs. Boston-based Barr Foundation’s grant of $230,000 will establish a “performance management tool” to track and measure the success of initiatives undertaken under Massachusetts’ Global Warming Solutions Act (“GWSA”). Supporters expect it to “serve as a national and regional model that other states can adopt to analyze” their own greenhouse gas reduction efforts. The GWSA, enacted in 2008, requires extremely ambitious reductions in greenhouse gas emissions within Massachusetts in the coming decades: an 80% emissions reduction goal by 2050 and 10-25% by 2020 from a 1990 emissions baseline The act directed the Secretary of Energy and Environmental Affairs to set the 2020 reductions and adopt a plan for achieving them.

The planning and regulatory documents issued since enactment recognize that the success of a single state’s effort to address the causes of climate change cannot be measured by the impact of its own reductions in greenhouse gas emissions in effecting changes in the global climate. The effect will simply be too small to measure. Instead, the state’s plan touts the beneficial effects of spurring economic development through the encouragement of green energy and other high tech businesses, the reduction of localized pollution, and the stabilization of energy prices. The success of the program in “bending the curve” of rising greenhouse gas emissions, however, rests entirely on its ability to serve as an example to other political entities – states mainly but, ultimately, geopolitical entities through broader global participation.

In December 2010, the Secretary of Energy and Environmental Affairs released the Massachusetts Clean Energy and Climate Plan for 2020 setting the reduction target at 25% below 1990 baseline. The Executive Summary summarizes reductions anticipated from existing and expected programs (table at page 6). Policies relating to Buildings (9.8% or more than one third of the 25% reduction), Electricity (7.7%) and Transportation (7.6%) account for the vast majority of the reductions. Within each sector, reductions are characterized as either “Existing Policy” (e.g., Federal and California vehicle efficiency and GHC standards – 2.6% reduction), “Expanded Policy” (e.g., advanced building energy codes – 1.6% reduction), or “New Policy” (e.g., Green DOT, the Massachusetts’ transportation agencies fulfillment of their sustainability commitment – 1.2% reduction). The Barr Foundation’s grant will help create the “dashboard” that presumably will take into account the likelihood of adoption of new programs or the expansion of existing ones and the ultimate efficacy of any of the programs, as it tracks the progress of the Massachusetts program.

Efforts to track the success of the Massachusetts program will build on the work done by MassINC, a Boston-based “independent think tank” that earlier this year released a book-length report titled “Rising to the Challenge/Assessing the Massachusetts Response to Climate Change.” This very thoughtful work looks specifically at Massachusetts’ progress to date and likely future success in emission reductions in various sectors; it provides useful capsule descriptions of other state’s programs and of regional and foreign initiatives. And it discusses the crucial issue of the economic costs and benefits of the program, as that will be a prime determinant of the program’s ability to be a role model for other jurisdictions.

The MassINC report recognizes that data on the subject of economic costs and benefits are subject to extremely complex and differing interpretations. The report notes there is general agreement in Massachusetts that “it is desirable to reduce greenhouse gases and develop clean energy [,] it is more difficult to reach consensus when the subject turns to the cost of addressing climate change ….” Id. at 75. Nonetheless, a convincing explanation of the specific costs and benefits of various courses of action is a necessary component of any successful program because the ultimate effectiveness of a state’s program rests on its attractiveness as a model for other jurisdictions – including those with different views of the appropriate tradeoffs between environmental protection and economic development.

American College of Environmental Lawyers, The ACOEL, is a professionalassociation of lawyers distinguished by experience and high standards in the practice of environmental law, ethics, and the development of environmental law.